As shown by the votes thus far in our latest poll, medical leave issues continue to confound HR professionals and business owners.

One item rather frequently requested by our visitors is a handy guide to the interplay among the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA) and workers’ compensation (WC).

Ask and you shall receive …

Click here for our brand-new ADA vs. FMLA vs. WC Cheat Sheet. Thanks to the fine folks at McGuire Woods LLP for their assistance in putting this together!

Today, the EEOC announced yet another record-breaking settlement. A large telecommunications company agreed to pay $20 million to settle a nationwide disability discrimination class action.

Background

As discussed previously here and here on the Blawg, the EEOC is openly targeting inflexible leave policies.

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) as long as it doesn’t impose undue hardship. That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

A few weeks ago, the EEOC held a public meeting to discuss the issue. It plans to issue formal guidance on the subject in a few months.

The Claims

In this case, the EEOC alleged that the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or terminated them pursuant to “no fault” attendance policies. The EEOC claimed that the company violated the ADA by refusing to make exceptions to its policies to accommodate employees with disabilities.

More specifically, the EEOC took exception to the company’s practice of placing employees who accumulated a number of “chargeable absences” into a progressive discipline system that could result in discharge.

The Record

According to the EEOC, this resolution is the largest disability discrimination settlement in its history. The press release announcing the settlement also noted that the past year had a record number of discrimination charges nationally (25,165) — up 17.3% over the prior year.

What This Means For Employers

Here’s what the EEOC said: “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”

What exactly should employers do? Here are some suggestions:

1. Know the ADA (especially the new ADAAA regs) and remember that the definition of “disability” is extremely broad.
2. Take a good, long look at any leave policies that could be perceived as overly rigid by the EEOC. Any policy that imposes a maximum leave amount without exceptions could be subject to scrutiny.
3. Engage in the ADA-mandated interactive process with any employee with a disability who requests extended leave.
4. Call the Job Accommodation Network to discuss any thorny accommodation issues. It’s free and the EEOC loves it when you seek their guidance.
5. Ask your favorite employment lawyer to help you determine whether a leave-related accommodation is (1) reasonable or (2) imposes an undue hardship under the law. That’s not always an easy analysis.

As discussed here on the Blawg, earlier this week the EEOC held a public meeting to “examine the use of leave as a reasonable accommodation.”

So, what happened? Here are the highlights . . .

The Issue

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act as long as it doesn’t impose undue hardship.

That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

That disagreement has led to some humongous settlements. In 2009, the EEOC settled a case for $6.2 million with a large retailer it alleged had an excessively rigid leave policy. Earlier this year, the EEOC settled a similar case for $3.2 million.

The Discussion

The EEOC issued a press release with its take on the session. Others weighed in as well.

In short, EEOC and employee advocates asserted that inflexible leave policies violate the ADA’s “reasonable accommodation” requirement because they don’t allow for individualized fact-specific determinations. The EEOC made it crystal clear that it intends to continue aggressively pursuing “pattern and practice” cases against employers who enforce such policies.

Employer advocates agreed that leave may be a reasonable accommodation but vigorously questioned the burden the EEOC’s position puts on employers (especially small businesses). One advocate called for the EEOC to provide “more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not.”

What’s Next?

The EEOC announced that it will accept additional written comments on this issue through June 23.

Want to express yourself? You can email your comments to Commissionmeetingcomments@eeoc.gov or mail ‘em to:

Commission Meeting
EEOC Executive Officer
131 M Street, N.E.
Washington, D.C. 20507

The EEOC plans to issue its official written guidance on this subject in a few months. So, speak now or forever hold your peace.

Want More?

Additional info about this meeting, including a video of the proceedings and written witness statements is available here.

This Wednesday (June 8), the EEOC will hold a public meeting to “examine the use of leave as a reasonable accommodation.”

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act as long as it doesn’t impose undue hardship. That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

That disagreement has led to some humongous settlements. In 2009, the EEOC settled a case with a large retailer for $6.2 million it alleged had an excessively rigid leave policy. Earlier this year, the EEOC settled a similar case for $3.2 million.

Click here for all the meeting details.

(Special thanks to The Blog of Legal Times)

Do you know the ADAAA?  Click here for our cheat sheet.

Surprisingly few people are talking about the final rule recently issued by the EEOC implementing the ADAAA. Here are the highlights.

What employers are covered? Those with 15 or more employees.

Effective date. 60 days after the publication of the regulations on March 25.

Easier to establish a covered “disability.” The ADAAA overturned several Supreme Court decisions that Congress believed interpreted the ADA disability definition too narrowly. The ADAAA expressly states that the definition of “disability” and “regarded as” should be interpreted in favor of broad coverage.

Same “disability” definition but broader interpretation. The basic definition of a covered disability remains the same — a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the EEOC stresses that the ADAAA and new regulations are designed to ensure broad interpretation of each of those key terms.

Rules of construction. According to the EEOC, the regulations “implement Congress’ intent to set forth predictable, consistent, and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity.” Those rules include:

• “Substantially limits” construed broadly. “Substantially limits” requires a lower degree of functional limitation than the standard previously required by courts. A condition need not prevent or significantly restrict a major life activity to be considered “substantially limiting.”
• Individualized assessment. The determination of whether a condition substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
• Don’t consider mitigating measures. With the exeception of “ordinary eyeglasses or contact lenses,” the determination of whether a condition substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.”
• Do consider episodic or remission conditions. Such conditions are covered disabilities if they substantially limit a major life activity.
• No extensive analysis required. The EEOC says that “in keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”

Reasonable accommodation. The regulations clarify that an individual must be covered under the ADA’s first prong (“actual disability”) or second prong (“record of disability”) to qualify for reasonable accommodation.

Conditions that “virtually always constitute a disability.” The regulations provide examples of conditions that “should easily be concluded to be disabilities,” including bipolar disorder, cancer, diabetes, epilepsy and HIV infection.

Q&A. Click here for a Q&A prepared by the EEOC and here for one specific to small businesses.

In our most recent Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue in the world right now.

To help lower your temperature, we’ll be answering your medical questions for the next several days.

Today’s Topic: FMLA

Q: Is it possible to terminate an employee on FMLA? If an employee has exhausted FMLA, does ADA automatically kick in or does the employee have to initiate it?

A: Generally, an employer may legally terminate employees for any legitimate non-discriminatory reason. However, recognize that employees who are terminated while on leave are likely to find the timing suspect and may file suit.  Also, an FMLA “serious health condition” does not automatically qualify as an ADA ” disability.” If the employee is unable to work or perform other major life activities, the condition may be an ADA-qualified disability. If so, it’s wise to engage in the ADA-mandated “interactive process” to determine what, if any, reasonable accommodation may be needed.

Click here for our handy ADA vs. FMLA Cheat Sheet.

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Q: We have an employee out on FMLA. Is it OK to use company email to communicate with him during that time? Is it OK if he is a salesperson and he makes some phone calls to customers during the leave?

A: From a technical standpoint, employees should not perform work while on leave and should not be instructed to do so. Employers should not contact employees on leave except to obtain information related to the reasons for the leave. If an employee is required to work while on FMLA, such time is compensable and can’t be counted toward FMLA leave.

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Q: Many times, I find out that one of our employees was or is in the hospital. How do you go about designating FMLA leave under those circumstances? I’ve heard about “provisional” FMLA — how do you designate that?

A: FMLA doesn’t specifically provide for the designation of “provisional” leave. However, an employer may designate leave as FMLA at any point within 5 days of “acquiring sufficient knowledge to believe” that an absence could qualify. If you don’t have the necessary information, you are permitted to seek it from the absent employee.

In last week’s Quarterly Employment Law Thermometer, our Blawg visitors identified “Medical Issues” as by far the #1 most headache-inducing employment law issue in the world right now.

To help lower your temperature, all week long we’ll be answering your medical-related questions. Here’s today’s selection . . .

Q: Leave law leaves me confused. Could you please publish something simple that shows how the ADA and FMLA relate?

A: Ask and you will receive. Click here for our handy ADA vs. FMLA Cheat Sheet.

Tune in tomorrow for more answers to your medical-related questions.

Here’s last week’s question, along with your responses:

I’m allergic to work. Is that a disability under the Americans with Disabilities Act?

1. Yes (3%)
2. No (31%)
3. Perhaps, if it substantially limits 1 or more major activities of everyday life (47%)
4. Perhaps, if it is a “serious health condition” as defined under the law (19%)

Congratulations — the correct answer is indeed #3.

The Americans with Disabilities Act (ADA) protects physical or mental impairments that substantially limit one or more major life activities.  Employers should be careful to apply that test rather than jumping to any conclusions about whether a particular condition may or may not be covered.  “Major life activities” has been broadly defined to include breathing, sitting, standing, walking, seeing, hearing, performing manual tasks, caring for oneself, learning and working.

Another tip:  Any time an answer starts with “perhaps,” “maybe” or “it depends,” chances are that’s the correct answer.  Have you ever known a lawyer who didn’t start an answer that way?

Thanks for your participation!

In preparation for today’s webinar, we created some new tools to help make your life easier:

• Confused about how the ADA and FMLA relate? Click here for a handy comparison of the two laws.
• Worried about the government’s crackdown on independent contractor misclassifications? Click here for our easy-to-use checklist.
• Social media freaking you out? Click here for a sample policy, courtesy of the fine folks at McGuireWoods LLP.

We’ll discuss all these tools plus a whole lot more in today’s webinar. See today’s earlier post to sign up.

Thanks to the 582 of you who voted on last week’s question. Here are the results . . .

An employee comes into your office at 4:58 on a Friday afternoon and informs you that he suffers from multiple medical conditions, including “work-induced narcolepsy,” “spontaneous combustion syndrome” and “episodic cubicle-confinement hyper-grumpiness.” He demands several accommodations, including: (1) a portable I.V. hooked up to an espresso machine, (2) a fire extinguisher mounted to his head, (3) three-and-a-half weeks off each month and (4) your office. If you have time to make only one call, to whom should it be?

a. The EEOC (8%)
b. A lawyer who specializes in the ADA (57%)
c. The Job Accommodation Network (17%)
d. The employee’s physician (12%)
e. The employee’s spouse to see if he’s making all this up (7%)

The correct answer is “c”: the Job Accommodation Network.

The Job Accommodation Network (JAN) is a service dedicated to assisting employers who face difficult accommodation decisions. To contact JAN, click here, on the link (jan.wvu.edu) under the “Other Resources” section of the Blawg or call 800-526-7234.

I’ve always found JAN to be extremely helpful. In fact, on at least one occasion the EEOC has stated publicly that it is more likely to believe that an employer acted in good faith if it consulted with JAN during the accommodation process.

The best part? JAN is FREE. In our experience, $0 an hour is less than what most law firms charge.

I’m not surprised that JAN was selected as the correct answer by only 17% of our respondents. I’ve done dozens of seminars and very few people have ever given JAN as the correct answer to this question. JAN just may be the best-kept secret in the employment law universe.

Our viewers are now batting a respectable .537 (22 right, 19 wrong) on our weekly questions.

The next one will be coming your way soon. Thanks for your participation!